SHAMSHAD Vs. STATE OF U P

JUDGEMENT

(1.) RAVINDRA Singh, J. This appli cation has been filed by the applicant Shamshad with a prayer that he may be released on bail in Case Crime No. 25 of 2007 under section 302 IPC, P. S. Aliganj, District Etah.

(2.) THE facts in brief of this case are that the FIR of this case has been lodged by Mustaq at P. S. Aliganj on 30. 1. 2007 at 10. 00 p. m. in respect of the incident which had occurred on 30. 1. 2007 at about 9. 30 p. m. THE applicant and three other co-accused persons are named in FIR. THE distance of the police station was about one km. From the alleged place of occurrence. It is alleged that at the time of the alleged incident the deceased Mushir along with other persons was present at the door of his house then the applicant and three other co-accused persons came there and asked to commit the murder of the deceased. THE deceased was caught hold by co-accused Shakil and Bhura, at the exhortation of co- accused Sajjad the applicant discharged the shot by a country made pistol which hit on the right eye of the deceased consequently he fell down. THE alleged occurrence was wit nessed by the first informant and others in the road light and the light of Generator thereafter the applicant and other co-accused persons fled away from the place of occurrence discharging the shots in the air. THE deceased was taken by the first informant and others in a TATA 407 vehi cle for providing the medical aid but be succumbed to his injuries at a chauraha thereafter the dead body was taken to the police station and lodged the FIR. Accord ing to the post-mortem examination the deceased has sustained five injuries in which injury Nos. 1, 3 and 5 were fire arm wounds of entry, injury No. 2 and 4 were fire arm wounds of exit, injury No. 1 was on right eye, injury No. 3 was gun shot wound of entry on front of right shoulder, injury No. 5 was fire arm wound of entry on front of left shoulder. THE applicant applied for bail before learned Session Judge, Etah who rejected the same on 18. 3. 2008, being aggrieved from the order dated 18. 3. 2008 the applicant has moved the present bail application.

(3.) IN reply of the above contention, it is submitted by learned A. G. A. and learned Counsel for the complainant that the in the present case the presence of the first infor mant and other witnesses is highly doubt ful because as soon as the deceased sus tained injury Iv was kept on a TATA 407 vehicle and was taken to provide medical aid but unfortunately he succumbed to his injuries in the way then he was taken to the police station in that vehicle where the FIR was lodged. The FIR has been promptly lodged within half an hour whereas the distance of the police station was about one km. From the alleged place of the occur rence. IN FIR it has been specifically alleged that the shot discharged by the applicant hit near the left eye but in FIR it cannot be mentioned that two other co-accused per sons have also caused gun shot injuries on the person of the deceased only because it was lodged in hurry and first informant was also in a perturbed position. The FIR is not supposed to be an encyclopaedia. After lodging the FIR at 10. 00 pm. the inquest report was copied in the case diary thereaf ter the statement of constable Yad Ram has been recorded on 30. 1. 2007 and in the night of 30/31. 1. 2007 thereafter the statement of first informant Mustaq was recorded by the I. O. at 0. 45 a. m. thereafter the statement of other persons were recorded. The time of recording the statement of the first infor mant under section 161 Cr. P. C. has been mentioned in the case diary in parcha No. 1, his statement was recorded at 0. 45 a. m. on 31. 1. 2007 whereas the post-mortem was done on 31. 1. 2007 at 10. 30 a. m. , therefore, it cannot be said that on the basis of injuries found in post-mortem examination a ma terial improvement has been made in the statement of first informant Mustaq under section 161 Cr. P. C. even in the site plan which was prepared on 31. 1. 2007 it has been specifically alleged that the first shot was discharged by the applicant thereafter two shots were discharged by two co-accused persons. There was a sufficient source of light. IN any case it cannot be said that the deceased was murdered by some unknown persons due to enmity. The case of the applicant is distinguishable with the case of the other co-accused persons who have been released on bail by Sessions Court because the role of causing the inju ries is not attributed in the FIR whereas the specific role of causing the injury on the person of the deceased is attributed to the applicant in the FIR. IN case the applicant is released on bail, he shall tamper with the evidence, therefore, he may not be released on bail.